E-Blasts

Why You May Be Seeing “Fight for $15” Buttons Worn By In-N-Out Workers

On Monday, the U.S. Supreme Court denied In-N-Out Burgers' ("In-N-Out") petition to review a decision that upheld a ruling by the National Labor Relations Board (“NLRB”) that ordered In-N-Out to lift its ban on workers wearing “Fight for $15” buttons with their work uniforms.

In-N-Out, as Californian’s are well aware, is a fast food chain famous for its “animal style” burgers and fries as well as its throwback to the 1940s era when the chain first opened its doors. In-N-Out hasn’t changed much since its opening, with clean-cut matching uniforms and high standards for customer service, including being greeted with perky smiles. The “Fight for $15” is a national political movement advocating for the federal minimum wage to be raised to $15 per hour. Currently, the federal minimum wage is $7.25/hour and has not increased since 2009.

In 2015, several employees at the Austin, Texas In-N-Out were told they were not allowed to wear their “Fight for $15” buttons with their work uniforms during their working shift. One employee had asked permission to wear the button and was denied, and another was told to remove his button because it violated the uniform policy. A third interacted with a store manager over the button, telling him the store couldn't make her remove her gear. The employees filed an unfair labor practice charge against In-N-Out, claiming the button ban violated the employees' right to engage in a protective concerted activity. In-N-Out lost at the NLRB and appealed to the Fifth Circuit.

In cases where an employer uses the “public image exception” as a basis for restricting employees from wearing union insignia, the NLRB will balance the employee’s right to engage in union activities against the employer’s right to maintain discipline or achieve its legitimate business objectives. In-N-Out argued that its uniform rule was justified by “special circumstances” in that the buttons unreasonably interfere with the restaurant’s business plan and public image it has established over decades, and that its workers directly face customers who will see the buttons. Further, In-N-Out argued that the buttons clashed with In-N-Out's message — which it claims is "infused with positivity and placid wholesomeness" — with the "discontent" expressed by the “Fight for $15” buttons, which depict a clenched fist. Additionally, In-N-Out claimed the button is a food safety hazard because it’s smaller in size than other buttons In-N-Out approved its workers to wear when preparing food because the approved buttons are large enough to notice if they fall in the food.

The Appellate Court rejected In-N-Out’s theory, saying the scope of the public image exception didn't cover the “Fight for $15” buttons, while also noting that In-N-Out did not make any effort to examine the “Fight for $15” buttons for safety issues before restricting employees from wearing them, which indicates that the company's food safety argument is a “post hoc invention.”

In-N-Out petitioned the U.S. Supreme Court arguing that, "Employers have a constitutional right to free commercial speech under the First Amendment, and it's quite clear that at least when it's customer-facing, when it's what the employee is showing to the customer, the constitutional right trumps the statutory right." The Supreme Court refused to review the Appellate Court’s decision, upholding the win for the employees.

COUNSEL TO MANAGEMENT:

The employer, rather than the employee, is required to establish a “special circumstance” to limit an employee’s right to wear union insignia and establishing such a circumstance is very limited and difficult to satisfy. For example, union insignia may be limited or banned only where such items unreasonably and negatively impact concerns such as: 1) employee safety, 2) the employer’s public image, or 3) the employer’s relationship with its clientele. Further, if the employer is going to claim harm to public image or negative impact with employer clients, employers must have definitive proof that the union insignia is actually harming those relationships. Even employers who have complete bans on all insignia or buttons may run afoul of the NLRA. As with almost all labor disputes or decisions, a full review of the facts and circumstances should be undertaken before making any sweeping decisions on policy or employee discipline. For all questions regarding employer’s rights in conjunction with union activity, please do not hesitate to contact the experts at the Saqui Law Group, a division of Dowling Aaron Incorporated.

Alert - March 2nd is the Deadline to Submit Mandatory Online Form 300A to OSHA

As previously reported here, on April 30, 2018, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”)  published a news release announcing that all affected employers are required to submit injury and illness data in the Injury Tracking Application online portal, even if covered by a state plan that has not completed adoption of its own state rule. This is in an effort to improve its tracking of workplace injuries and illnesses.

As you recall, California employers with 250 or more employees, and employers with 20 or more employees that are classified in certain “high-hazard” industries with historically high rates of occupational injury and/or illness in the workplace, including agriculture and freight trucking, (“high-hazard employers”) deadline to comply with the federal online reporting requirement was July 1, 2018.

Beginning in 2019, and every year thereafter, employers must submit electronically the required Form 300A annually by March 2nd.  The upcoming deadline applies to any and all California employers with 250 or more employees regardless of classification, and employers with 20 or more employees if they are classified in certain “high-hazard” industries.

In addition to Form 300A, larger employers are required to submit two more forms. This table shows the mandatory submission for employers:

Number of Employees

Industry

Required Forms

250 or more

All

Form 300, Form 300A, Form 301

20-249

“High-hazard”

Only Form 300A

20-249

Not “high-hazard”

N/A

Less than 20

All

N/A

 

All three forms and the instructions to complete the forms can be found here. The required records of injuries and illnesses must be electronically submitted through the Injury Tracking Application, which can be found here.

Democrats Unveil Bill To End Mandatory Arbitration Agreements

By: Gregory Blueford

On Thursday, two Democratic lawmakers unveiled a bill to block companies from making employees sign mandatory arbitration agreements as a requirement for employment. The Forced Arbitration Injustice Repeal Act, sponsored in the Senate by Sen. Richard Blumenthal, D-Conn., and in the House of Representatives by Rep. Hank Johnson, D-Ga., would bar mandatory arbitration agreements not only in employment disputes, but also for consumer, antitrust and civil rights claims. Additionally, it would block arbitration agreements that stop individuals, workers and businesses from joining or filing class actions.

Mandatory arbitration agreements, which generally make workers and other individuals lodge claims in solo arbitration rather than court, are under the microscope following the U.S. Supreme Court's Epic Systems v. Lewis ruling, which you can read more about here. We will keep an eye on this bill and provide updates as they become available.

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